Claimant sought judicial review of an order of the Workers' Compensation
Board upholding SAIF's denial of compensation for claimant's current condition and
consequential injury. SAIF had originally accepted claimant's condition consisting of a
left knee strain and contusion and a tear of the medial meniscus. Several weeks later,
claimant suffered a new injury to the same knee, an injury of which SAIF became aware
through a report from claimant's treating physician. As a result of that information, SAIF
issued a denial of compensability for the new injury and for claimant's post-injury
condition without first closing the accepted claim. Ultimately, the Board upheld the
denial. On review, we reversed the Board's ruling and remanded for reconsideration,
reasoning that there is no statutory authority for the denial of a consequential injury claim
unless the underlying, accepted claim is also closed. We observed, "we cannot discern
from the record before us what effect if any, SAIF's failure to close the accepted claim
had on the payment of compensation for the accepted condition." Roy, 171 Or App at
535.

In its petition for reconsideration, SAIF argues that the record shows that it
issued a notice of closure of the accepted claim four calendar days and two business days
after it issued the denial. Relying on our holding in Chaffee v. Nolt, 94 Or App 83, 764
P2d 600 (1988), for the first time on reconsideration, SAIF argues that there was no
erroneous failure to close the accepted claim in light of the proximity of its closure to the
issuance of its denial and the fact that the accepted claim had been closed before the
Board upheld the denial. SAIF did not rely on Chaffee until this petition for
reconsideration as a justification for the fact that its closure did not occur before the
denial. Our initial opinion did not discuss whether the accepted claim had been closed
before the Board's order upholding SAIF's denial. To the extent that our original opinion
suggests that it had not, it is modified accordingly.

The question then becomes whether, under Chaffee, SAIF is entitled to have
the Board's order upholding its denial affirmed. In Chaffee, the claimant sought review of
an order of the Board finding that the claimant's compensable back injury was medically
stationary without permanent disability at the time that the employer issued its notice of
closure. We affirmed the Board's order, writing only to address a procedural issue raised
by the claimant. Three days before the employer issued its notice of closure, it sent the
claimant a letter informing him that it was denying "any psychological condition as not
related to your condition." At the hearing, employer's counsel stated that the letter was
intended as a denial of future benefits for the back condition. Because the denial was in
effect a prospective denial of an accepted condition, we held it to be procedurally
improper. However, we also held:

"[I]n view of employer's prompt closure of the claim immediately after the
issuance of the denial, it does not appear that its conduct was intended to
shortcut the ordinary process of claim closure or was otherwise
unreasonable." Chaffee, 94 Or App at 85.

In this case, claimant expressly argued to the Board that the procedural error
of denying an accepted claim occurred before the claim was closed, but the Board did not
respond to that argument. As a result of that failure, we said that we could not discern
from the record before us what effect, if any, SAIF's procedural error had on the payment
of compensation for the accepted claim and concluded that the failure of the Board to
address claimant's argument rendered its order insufficient for our review. It is that
perception that distinguishes this case from Chaffee, in which this court made a ruling
that was tantamount to a ruling of harmless error on the facts of that case. As we stated in
our initial opinion, the more prudent course of action on the record before us is to permit
the Board to make the determination of the effect of SAIF's error in the first instance.

In claimant's petition for reconsideration, he requests that the Board's order
be reversed on the ground that it failed to address an evidentiary ruling of the
administrative law judge (ALJ). In our initial opinion, we held that claimant had not
shown that he put the Board on notice that the evidentiary ruling was an issue on appeal
to the Board. In his petition for reconsideration, claimant points to the language of the
letter of request for Board review in which he said, "Review is requested on each and
every issue raised at hearing." However, as we stated in our opinion, the letter focused
the Board's attention on the issue of compensability and did not expressly refer to any
evidentiary ruling. In lieu of submitting a brief on appeal to the Board, claimant
submitted a copy of the closing argument that he had submitted to the ALJ. The review
by the Board resulted in an order that stated: "On review, the issue is compensability."
Thereafter, claimant did not correct the Board's understanding by requesting the Board to
consider the evidentiary ruling on reconsideration. To adopt claimant's argument under
these circumstances would result in a reversal on judicial review on the ground that the
Board is required to review every ruling in the record made before the ALJ, even though
the Board has not been put on explicit notice as to the issue before it. For obvious
reasons, we decline claimant's invitation to promulgate such a principle of law. There is
no apparent reason that would have prevented claimant from alerting the Board to the
evidentiary issue in the way that he alerted it to the procedural error.